During the last thirty
days, minor party and independent candidates have won three lawsuits, and
lost three. More decisions are expected on an almost daily basis during the
first half of September.

Winning
Cases

Alaska: on August
13, a state court put the Republican Moderate Party back on the ballot. Metcalfe
v State, 3AN-04-8804.

Alaska law defines "party"
as a group that polled 3%, or which has registration membership of at least
3% of the last vote cast. However, independent candidates, and candidates
of unqualified parties, need a petition of 1% of the last vote cast.

The decision says, "Why,
then, should qualified parties be required to show 3% support? It is the Defendants’
burden to justify this discrepancy, yet the only explanation offered by the
Defendants is that the designation of "political party" carries
additional ramifications besides the right to use the primary election process
to nominate candidates for the general election ballot. This much is true,
but without a greater showing this argument does not further the Defendants’
position…Defendants have not articulated why the standard for affiliated candidates
to appear on the ballot must be higher than the standard for unaffiliated
candidates."

This is only the second
time any court has said that requirements for political parties cannot exceed
the requirements for independent candidates. The first was a federal court
in Arkansas in 1996.

The Alaska decision granted
an injunction for the Republican Moderate Party, but did not decide the issue
of the law’s constitutionality. Also, the injunction merely put the party
back on the November ballot, not the primary.

North Carolina:
on July 26, a U.S. District Court ruled that the state may not require more
signatures for an independent candidate, than for a new party. DeLaney
v Bartlett, 1:02-cv-741, m.d. DeLaney had filed this case in 2002, when
he wanted to be an independent candidate for U.S. Senate.

North Carolina has been
requiring 100,533 signatures for an independent, but 58,842 for a new party.

The decision was not
surprising. Courts in Alabama, Florida, South Carolina, and Missouri, had
also ruled that states may not require independent candidates to comply with
more difficult requirements than new parties. A U.S. District Court decision
in 1980 in North Carolina had also set forth this principle, but the legislature
had ignored it. The DeLaney precedent should help Ralph Nader with his pending
lawsuit against Texas.

Oklahoma: on August
13, the State Supreme Court put an independent candidate on the ballot for
Congress in the 4th district. Bradshaw v Oklahoma State Election
Board, 2004-69. State law says no one may be an independent candidate
(for office other than president) unless the person has been a registered
independent for the six months prior to filing. The plaintiff is a registered
Republican.

The Court did not explain
its reasoning. However, it is likely that the flaw in the state law is that
it indirectly requires candidates for Congress to be registered voters. Probably
the law would have survived if it had said that an independent candidate may
not have been registered as a member of a qualified party. This is a small
distinction, but a crucial one. Oklahoma is in the 10th circuit,
and the 10th circuit had ruled in 2000 that states may not require
candidates for Congress to be registered voters.

One result of the decision
is that the Oklahoma legislature must revise the law next year. Since the
legislature must pass a ballot access bill on this subject, perhaps other
helpful provisions could be added.

Another result is that
voters who are registered as members of unqualified parties will be able to
run for office using the independent candidate procedures. Independent candidates
(for office other than president) get on the Oklahoma ballot just by paying
a fee; no petition is needed. Yet registered Libertarians, for example, were
barred from running for independent candidates prior to this decision, even
though the Libertarian Party isn’t itself on the ballot.

Losing
Cases

California: on
July 28, Terry Baum lost her ballot access lawsuit in San Francisco Superior
Court. Baum v Arntz, 04-504120. On August 11, the State Appeals Court
affirmed the loss without holding a hearing, and on August 26 the State Supreme
Court refused the case.

Baum is the Green Party
nominee in the 8th U.S. House district. California requires a write-in
candidate in a primary to poll a minimum number of votes. That minimum is
the same for all parties, regardless of the size of the party. Since qualified
parties in California have far fewer members than major parties do, major
parties can nominate candidates by write-in at their own primaries easily,
but no minor party has done so since 1968.

Baum needed 1,605 write-ins.
She received over that number, but 229 of her write-ins were voided because
the voter who wrote her in, did not also check the box next to the write-in
line. She argued that voter intent should control. Similar cases had won in
six other states’ state courts, but that seemed to count for little.

Illinois: on August
23, U.S. District Court Judge Matthew Kennelly, a Clinton appointee, refused
to issue an injunction putting Nader on the ballot as an independent candidate.
The issues were the June 21 deadline, and the state’s refusal to count signatures
if the voter had moved since he or she had last registered to vote. Nader
v Keith, 04C-4913.

Nader is appealing to
the 7th circuit. Judge Kennelly said since the ballot must be printed
in September, the state needs a deadline in June. Illinois had an August deadline
until 1999. The state’s argument that the August deadline made ballot preparation
too difficult is a strong argument. But no evidence in the case explains why
the deadline can’t be in July. Forty-six states have deadlines in July, August
or September.

Ohio: on August
18, U.S. District Court Judge Susan Dlott, a Clinton appointee, refused to
put a Socialist Equality Party candidate for U.S. House on the ballot. Lawrence
v Blackwell, C-1-04-398, s.d. On August 27, the 6th circuit
also refused injunctive relief. The 6th circuit judges were Boyce
Martin, a Carter appointee; and R. Guy Cole and Ronald Gibbons, Clinton appointees.

The issue in the case
is the validity of the March 1 petition deadline for independent candidates
(for office other than president). The judge said, "If Ohio adopted the
scheme that Plaintiffs propose–allowing alternative candidates to file after
the primaries in order to ‘react’ to those results, alternative candidates
would have a substantial advantage of major party candidates."

This conclusion is laughable.
Independent candidates for U.S. House need approximately 2,000 registered
voters, whereas major party candidates only need 50 signatures. Furthermore,
each year Ohio gives hundreds of thousands of dollars in public funding to
parties that polled 20% of the vote in the last election, but no public funding
to other parties and candidates.

Still pending is a decision
on the constitutionality of the deadline, which won’t be decided until next
year.

DEBATES
VICTORY

For sixteen years, activists
have been trying to persuade the Federal Election Commission, or various courts,
that the Commission on Presidential Debates is not non-partisan. Finally,
on August 12, U.S. District Court Judge Henry Kennedy issued a ruling that
the Commission probably isn’t non-partisan. Hagelin v FEC, civ 04-731,
D.C. Kennedy is a Clinton appointee. His ruling requires the Federal Election
Commission to thoroughly study the issue.

If the Commission on
Presidential Debates is determined to be bi-partisan, instead of non-partisan,
it could no longer receive tax-exempt donations from corporations. And then
it probably would cease to exist.

Kennedy based on ruling
on new evidence that came to light after the 2000 election. The Commission
on Presidential Debates had pictures of the presidential and vice-presidential
candidates of the Reform, Green, Natural Law and Constitution Parties, just
prior to the 2000 debates. The Commission required all guards to memorize
what each of these eight individuals looked like. The guards were instructed
to keep them out of the audience, should they appear.

The Commission claimed
that they were just trying to prevent disrupters from entering. However, the
evidence showed that they made no attempt to learn the identities of any other
potential disrupters.

CALIF.
PRIMARY DATE

On August 26, the California
legislature gave final approval to SB 1730, which moves the primary from March
to June. The bill indirectly moves the deadline for qualifying a new party
from October of the year before the election, to January of the election year.
Assuming the bill is signed into law, Ohio will be the only state in which
it is impossible for a new party to be placed on the ballot (with the party
label) unless it qualifies in the year before the election. A Libertarian
Party lawsuit against Ohio’s early petition for new parties is pending in
federal court in Columbus.

MORE
BALLOT ACCESS LAWSUITS FILED

Arizona: on August
16, Ralph Nader filed a federal lawsuit against the June 9 petition deadline,
and the law forbidding out-of-state petitioners. Nader v Brewer, 04-1699-phx.
The case is assigned to Judge Fredrick Martone, a Bush Jr. appointee. The
hearing is September 10.

Colorado: Walt
Brown, Socialist Party presidential candidate, filed a lawsuit against the
July 2 deadline for an independent presidential candidate to file electors
and the filing fee. Brown v Davidson, 04-cv-6907, state court in Denver.
The law says the fee is due 120 days before the general election, which this
year was July 5. However, July 5 was a legal holiday. Brown still got the
check and the forms into the office on that day (by slipping it under the
door), but the Secretary of State says he should have filed by July 2.

West Virginia:
on August 6, the Libertarian Party filed a lawsuit to get its gubernatorial
candidate on the ballot. McClure v Manchin, 04-c-2197, circuit court,
Kanawha County. The only issue is the May petition deadline. The candidate,
Simon McClure, had enough valid signatures, but they weren’t submitted on
time. The hearing on August 26 went well.

LOUISIANA
RE-OPENS CONGRESS FILING

On August 4, Congressman
Rodney Alexander, a Louisiana Democrat, filed for re-election. On August 6,
he re-filed, this time to reflect that he had just changed his voter registration
from "Democrat" to "Republican." His August 6 filing was
only thirty minutes before filing closed. This left the Democratic Party no
time to recruit a new candidate.

On August 23, a State
Court ruled that candidate filing should be re-opened for U.S. House in Alexander’s
district. LaCombe v McKeithen, 61331, 18th jud. dist. The
case had been filed by Democrats, seeking to remove Alexander from the ballot.
The judge found his own solution.

PRO-PARTY
FORCES WIN TWO CALIF. LAWSUITS

California’s Proposition.
62 proposes that all candidates for Congress and state office compete on a
single primary ballot. Then, only the top two vote-getters could appear in
November. Data from past blanket primaries shows that only Democrats and Republicans
would ever appear on the November ballot.

Opponents of Prop. 62
won two lawsuits recently. On July 30, the State Appeals Court ruled that
a rival measure, Prop. 60, should also be on the ballot. Californians
for an Open Primary v Shelley, C047231.

Prop. 60 says that if
a party participates in a primary, the person who receives the most votes
for any particular office in that party’s primary may appear on the November
ballot. If both propositions pass, only the one with the most votes will take
effect, since the two propositions contradict each other. Therefore, supporters
of Prop. 62 were eager to remove Prop. 60 from the ballot.

An accidental byproduct
of Prop. 60 would be to eliminate an unfair election law, section 8605. Section
8605 is responsible for the Green Party’s problems this year, trying to get
its U.S. House candidate in San Francisco on the November ballot. It requires
write-in winners to receive a number of write-ins, equal to 1% of the vote
cast for that office at the last general election. This law has prevented
minor parties from nominating anyone by write-in for 36 years.

In another lawsuit related
to Prop. 62, a Superior Court ruled on August 9 that arguments about Prop.
62 in the State Voters’ Handbook cannot refer to the proposal as an "open
primary." Vandermost v Shelley, 04cs01033. The judge said that
"open primary" is now a technical term in law. It means a primary
in which the voter who arrives at the polls on primary day may choose any
party’s primary ballot. But, each party has its own primary ballot.
Prop. 62 does not have separate primary ballots for each party, so it is not
an "open primary."

ALABAMA
HOPE

This year, at least three
candidates were barred from a major party primary on grounds of "disloyalty"
to their own party. All three of them sued, and all three lost. However, the
implications may be that Alabama ballot access for minor party and independent
candidates will be eased.

One of the candidates
who sought a place on a major party primary ballot this year, and was denied,
is Johnny Swanson. He filed in the Democratic primary for U.S. Senate this
year, but the party rejected him because in 2002 he had tried to be an independent
candidate.

Swanson filed a federal
lawsuit against the Democratic Party this year, but lost the case on August
4. Swanson v Pitt, civ 2:04-534, Montgomery. By a lucky coincidence,
that case was assigned to Judge Myron Thompson.

Judge Thompson ruled
against Swanson this year on the grounds that political parties have a Freedom
of Association right to exclude candidates from their own primaries if they
wish. However, Thompson is also the judge who still has jurisdiction of Swanson’s
2002 case, which was filed to overturn Alabama’s 3% petition requirement for
minor party and independent candidates. No decision on that case has ever
been made.

Judge Thompson alluded
to the pending 2002 case several times in his August 2004 decision on primary
ballot access. He is aware that Swanson, and other candidates, are not permitted
to run in the major party primaries, because of their past political stands.
It is obvious that if certain persons are not permitted to run in major party
primaries, then the door must be open for them to run as independent or minor
party candidates. Judge Thompson is likely to rule that Alabama’s ballot access
requirements for minor party and independent candidates are unconstitutional.

The other two candidates
who were barred from primary ballots this year because of their politics are
Kelly McGinley and Ginette Dow.

SPENDING
CAP UPHELD

On August 24, the 2nd
circuit mostly upheld Vermont’s campaign law. Vermont is the only state that
makes it illegal for a candidate to spend more than a specified amount of
money, and yet doesn’t provide for public financing. (It is true that Vermont
has public funding for governor and lieutenant governor, but it doesn’t have
public funding for any other state offices, and the expenditure limit applies
to all state offices). Landell v Sorrell, 00-9159. The vote was 2-1.
The dissent is 150 pages.

9th
CIRCUIT RULING DUE

The 9th circuit
says it will decide on September 7 whether a state must deem a person to be
a registered voter on the day he or she fills out a voter registration form,
or whether the person isn’t validly registered until the form has been processed.
The result will determine whether a marijuana law initiative gets on the Nevada
ballot. Committee to Control Marijuana v Lomax, 04-16626.

The Nader column assumes
that the Reform Party national convention (in session as this newsletter goes
to print) re-affirms Nader’s nomination.

Proh. is on in Co.

Socialist is on in
S.C.,N.J., Mi.

Soc. Equality is
on in N.J., Co., Iowa, Wash, and done in Mn., Oh, and Wi.

Workers World is
on in Wa.

American has 1,000
in Mississippi and 300 in Utah.

# means the state permits
a partisan label other than "independent."

The new Louisiana law,
requiring 1,000 registrants for party status instead of 128,120, doesn’t go
into effect until 2005.

NADER,
PEROUTKA, BROWN ALL WIN NEW PRESIDENTIAL NOMINATIONS

Ralph Nader: won
the nomination of the ballot-qualified Independent Party of Delaware on August
15. This party was formed in 2000 to run Floyd McDowell for Governor.

Nader will probably win
the nomination of the Vermont Green Party on September 12. The Utah Greens
are split between Nader and David Cobb, and probably won’t nominate anyone
for president, since they can’t act without consensus. The California Green
Party voted on August 10 to reaffirm its support for David Cobb as its presidential
nominee. The vote was 11-7.

Nader won the nomination
of his own Populist Party on August 28. The convention was held in Takoma
Park, Maryland.

Michael Peroutka:
has been nominated by the ballot-qualified Nebraska Party.

Walt Brown: has
been nominated by the ballot-qualified Natural Law Party of Michigan. Brown
is also the Socialist Party nominee.

PEACE
AND FREEDOM NOMINATES

On July 31, the Peace
& Freedom Party, a ballot-qualified party in California, nominated Leonard
Peltier for president and Janice Jordan for vice-president. The vote was:
Peltier 17, Nader 7, Brown 4. Peltier is imprisoned in the federal penitentiary
at Leavenworth, Kansas.

REFORM
PARTY RE-AFFIRMS NADER

On August 27-29, the
Reform Party is holding another national convention in Irving, Texas. It is
expected to reaffirm its earlier nomination of Ralph Nader for president.

SOUTH
CAROLINA REFORM PARTY

In May, the ballot-qualified
Reform Party of South Carolina changed its name to the Independence Party.

LIBERTARIAN
PRIMARY IN COLORADO

On August 3, a primary
was held for the Libertarian Party of Colorado in a single legislative district.
This was the first time Colorado had held a primary for any party, other than
the two major parties, since 1914. Between 1910 and 2003, Colorado only held
primaries for parties that had polled 10% for Governor at the previous election.

But in 2003, the law
was changed to provide that any qualified party must nominate by primary,
if two candidates seeking its nomination for any public office show substantial
support at the party’s nominating convention.

GREEN-LIBERTARIAN
DEBATE AUG. 31

C-SPAN 2 will carry the
Cobb-Badnarik presidential debate live from New York. Aug. 31, 7 p.m. 502
W 41st St.

"FAKE"
PARTIES IN COLORADO ABSTAIN

Back in April 2004, a
Denver attorney named John Sackett organized two new political parties, and
arranged for petition drives to get them on the Colorado ballot (he used the
alternative of obtaining 10,000 signatures, rather than the method of getting
1,000 registered voters). The two new parties are the Pro-Life Party and the
Gun Owners’ Rights Party.

Sackett is a Democrat,
and his motive for creating these two new parties was to have them nominate
candidates who would, presumably, attract some votes from people who would
otherwise vote Republican. However, neither the Pro-Life Party nor the Gun
Owners’ Rights Party nominated any candidates for public office this year.
Under the law, though, they could run some in 2006.

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